DECISION

Coriolis Telecom v. The Coriolis Group, Inc.

Claim Number:  FA0302000146624

PARTIES

Complainant is Coriolis Telecom, Nanterre, FRANCE (“Complainant”) represented by Mark Lebow of Young & Thompson. Respondent is Robert Wolpert The Coriolis Group, Inc., Scottsdale, AZ, USA (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <coriolis.com> registered with Network Solutions, Inc.

PANEL

The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.

James A. Crary as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on February 25, 2003; the Forum received a hard copy of the Complaint on February 28, 2003.

On February 26, 2003, Network Solutions, Inc. confirmed by e-mail to the Forum that the domain name <coriolis.com> is registered with Network Solutions, Inc. and that Respondent is the current registrant of the name. Network Solutions, Inc. has verified that Respondent is bound by the Network Solutions, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").

On March 5, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 25, 2003 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@coriolis.com by e-mail.

Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.

On April 2, 2003, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed James A. Crary as Panelist.

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent."  Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from Respondent.

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

1. Respondent’s <coriolis.com> domain name is identical to Complainant’s CORIOLIS mark.

2. Respondent does not have any rights or legitimate interests in the <coriolis.com> domain name.

3. Respondent registered and used the <coriolis.com> domain name in bad faith.

B.  Respondent failed to submit a Response in this proceeding.

FINDINGS

Complainant holds a trademark registration with the United States Patent and Trademark Office (“USPTO”) for the CORIOLIS mark (Reg. No. 2,667,531 registered on December 31, 2002) related to telecommunications goods and services. The Complaint filed by Complainant in this proceeding is extremely brief and does not put forth any factual allegations regarding Respondent’s use of the disputed <coriolis.com> domain name.

Respondent registered the disputed domain name on June 28, 1994.

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."

In view of Respondent's failure to submit a Response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules.

Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:

(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

(2) Respondent has no rights or legitimate interests in respect of the domain name; and

(3) the domain name has been registered and is being used in bad faith.

Identical and/or Confusingly Similar

Complainant has established its rights in the CORIOLIS mark through registration with the USPTO.

Respondent’s <coriolis.com>  domain name is identical to Complainant’s mark because the disputed domain name appropriates Complainant’s entire CORIOLIS mark and merely adds the generic top-level domain (gTLD) “.com” to the end of the mark. The inclusion of a gTLD is not relevant when determining whether a domain name is confusingly similar to a mark pursuant to Policy ¶ 4(a)(i). Thus, the disputed domain name and Complainant’s mark are identical for the purposes of the Policy. See Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO July 7, 2000) (finding <pomellato.com> identical to Complainant’s mark because the generic top-level domain (gTLD) “.com” after the name POMELLATO is not relevant); see also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar).

The Panel finds that Complainant has established Policy ¶ 4(a)(i).

Rights or Legitimate Interests

Respondent has not come forward with a Response in this proceeding. Therefore, the Panel is permitted to make reasonable inferences in favor of Complainant and accept the allegations in the Complaint as true. See Do the Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“Failure of a respondent to come forward to [contest complainant’s allegations] is tantamount to admitting the truth of complainant’s assertion in this regard”); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint”).

Furthermore, Respondent has failed to invoke any circumstances that could demonstrate rights to or legitimate interests in the disputed domain name. When Complainant asserts a prima facie case against Respondent, the burden of proof shifts to Respondent to show that it has rights to or legitimate interests in the disputed domain name. See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (holding where a Complainant has asserted that Respondent has no rights or legitimate interests with respect to the domain name it is incumbent on Respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”); see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (finding that once Complainant asserts that Respondent has no rights or legitimate interests with respect to the domain, the burden shifts to Respondent to provide credible evidence that substantiates its claim of rights and legitimate interests in the domain name).

Through its own investigation, the Panel has discovered that the <coriolis.com> domain name does not currently resolve to a website. The Panel finds that the combination of Respondent’s failure to respond in this proceeding and the domain name’s failure to resolve to a website demonstrate that Respondent lacks all rights to or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). See Pharmacia & Upjohn AB v. Romero, D2000-1273 (WIPO Nov. 13, 2000) (finding no rights or legitimate interests where Respondent failed to submit a Response to the Complaint and had made no use of the domain name in question); see also Vestel Elektronik Sanayi ve Ticaret AS v. Kahveci, D2000-1244 (WIPO Nov. 11, 2000) (finding that “merely registering the domain name is not sufficient to establish rights or legitimate interests for purposes of paragraph 4(a)(ii) of the Policy”).

Respondent has provided no proof and there is no evidence in the record to establish that Respondent is commonly known by CORIOLIS or <coriolis.com>. Therefore, Respondent has failed to establish its rights to or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that Respondent does not have rights in a domain name when Respondent is not known by the mark); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where Respondent was not commonly known by the mark and never applied for a license or permission from Complainant to use the trademarked name).

The Panel finds that Complainant has established Policy ¶ 4(a)(ii).

Registration and Use in Bad Faith

With regard to bad faith registration and use, the Complaint alleges:

c.            The domain name coriolis.com was registered by Respondent and used in bad faith:

i. Respondent registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant who is the owner of the trademark, or to a competitor of the Complainant, for valuable consideration in excess of Respondent’s documented out-of-pocket costs directly related to the domain name;

ii. Respondent registered the domain name in order to prevent Complainant from reflecting the mark in a corresponding domain name;

iii. Respondent registered the domain name primarily for the purpose of disrupting the business of Complainant, a competitor; and/or [sic]

Complainant appears to have copied significant portions of the Policy into its Complaint to prove Respondent’s bad faith registration and use of the <coriolis.com> domain name. However, our Panels have consistently held that bald assertions are not sufficient to establish a prima facie case of bad faith registration and use. See Graman USA Inc. v. Shenzhen Graman Indus. Co. FA 133676 (Nat. Arb. Forum Jan. 16, 2003) (finding that general allegations of bad faith without supporting facts or specific examples do not supply a sufficient basis upon which the Panel may conclude that Respondent acted in bad faith); see also PRL USA Holdings, Inc. v. Polo, D2002-0148 (WIPO April 29, 2002) (finding that because Complainant failed to provide any factual allegations as to the nature of use of the disputed domain name, Complainant failed to prove that the Respondent’s domain names were being used in bad faith).

Under the Policy, Complainant bears the initial burden of presenting a sufficient prima facie case with regard to each of Policy ¶¶ 4(a)(i), 4(a)(ii) and 4(a)(iii). Complainant asserts that Respondent registered and used the disputed domain name in bad faith but Complainant does not support its assertions with any evidence, statements or proof. See Do the Hustle v. Tropic Web, D2000-0624 (WIPO August 21, 2000) (finding that paragraph 4(a) of the Policy sets out three elements implying that Complainant has the burden of proof as to each of the three elements); see also DR. S.A. v. aunomdelarose.com, D2001-0666 (WIPO August 16, 2001) (“A Complainant should never assume that simply filing a stereotype generic Complaint will have the effect of relieving them of their burden, even when there is no Response filed by the Respondent”).

Despite the fact that Respondent did not respond in this proceeding and the subsequent presumption in favor of Complainant, the Complaint must provide some evidence of bad faith registration and use on the part of Respondent. In its Complaint, Complainant has simply parroted the portions of the Policy that benefit Complainant; therefore, the Complainant has failed to establish a prima facie case of Respondent’s bad faith registration and use. See Caterpillar Inc. v. Off Road Equip. Parts, FA 95497 (Nat. Arb. Forum  Oct. 10, 2000) (refusing to find bad faith registration where the Complainant failed to submit any evidence that the domain name was registered in bad faith); see also VeriSign Inc. v. VeneSign C.A., D2000-0303 (WIPO June 28, 2000) (finding that the Respondent’s default does not automatically lead to a ruling for the Complainant).

The Panel finds that Complainant has failed to establish Policy ¶ 4(a)(iii).

Regarding Policy ¶¶ 4(a)(i), 4(a)(ii) and 4(a)(iii), the Policy states that “the complainant must prove that each of these three elements are present.” Complainant has failed to establish a prima facie case for Respondent’s bad faith registration and use of the <coriolis.com> domain name. Thus, the Complaint fails.

DECISION

Having failed to establish all three elements required under ICANN Policy, the Panel concludes that relief shall be DENIED.

Accordingly, it is Ordered that the <coriolis.com> domain name REMAIN with Respondent.

James A. Crary, Panelist

Dated:  April 18, 2003

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